Lead Agency Dispute: Town of Patterson v. Town of Kent

New York State Department of Environmental Conservation
Commissioner's Determination of Lead Agency
under Article 8 of the
Environmental Conservation Law

PROJECT: Proposed Patterson Crossing Retail Center located in the Towns of Patterson and Kent, Putnam County

DISPUTING AGENCIES: Town of Patterson Planning Board and the Town of Kent Planning Board.

This decision to designate the Town of Patterson Planning Board as lead agency for the conduct of the environmental review under the State Environmental Quality Review Act (SEQRA) is made pursuant to Article 8 of the Environmental Conservation Law (ECL) and 6 NYCRR Part 617. This decision is based on my finding that the Town of Patterson Planning Board has the broadest governmental powers for the investigation of the impacts of the proposed action through its site plan review and erosion control permit authority over the majority of the potentially affected property.

The proposed project is the application by the Hudson Valley Realty Corporation (Corporation) to construct a 439,500 square foot "retail center" with 2,079 parking spaces on a 90.46 acre parcel located along the border between and containing acreage in both the Town of Patterson and the Town of Kent, Putnam County. All of the six proposed new buildings, nearly all of the parking lots (97% of proposed spaces), and the secondary access road would be constructed within the significantly larger section of the property (74.1 acres, or ~82%) which lies in the Town of Patterson. The primary access road and a corner of one of 5 parking pads would be located in the smaller section of the property (16.3 acres, or ~ 18%) lying in the Town of Kent.

The entire parcel abuts the western right-of-way of Interstate Route 84 (I-84), and the proposed project would be constructed between I-84 and existing residential developments. A drainage divide splits the site, with flows going north and west into a direct tributary of Lake Carmel as well as east and south into the drainage system leading to the Great Swamp and East Branch of the Croton River. Most of the project site contains moderate to steep slopes and is forested, so site development would require substantial clearing and grading. On-site water supply and wastewater treatment systems will be required for the development as proposed.

While a number of local and state agencies have jurisdictions governing the project, only the Planning Boards of the Town of Patterson and the Town of Kent are contesting for lead agency. The Town of Patterson Planning Board (Patterson Board) jurisdictions are site development plan review plus an erosion control permit, and the Town of Kent Planning Board (Kent Board) jurisdictions are site development plan review plus erosion control, wetlands and sign permits.

The Patterson Board's jurisdictions apply to all activities on the portion of the property within the Town of Patterson, which includes the majority of the land clearing and new construction. The combination of site plan review and erosion control permits provides the Patterson Board with the authority to impose significant changes or conditions on the majority of the project's components, should those changes or conditions be identified as necessary to avoid or mitigate identified impacts.

Only a small portion of the project acreage is located within the Town of Kent; however, the project components proposed for that small area trigger multiple jurisdictions of the Kent Board. The main entrance and much of the primary access road from Route 311 are proposed to be within the Town of Kent, including a large sign at the base of the access road, near its intersection with Route 311. The access road itself would traverse 400 to 500 feet of relatively steep slopes, the lower roughly three-fourths of that length in the Town of Kent. Also within the Town of Kent portion of the site, segments of the access road plus a small corner of the parking area for buildings A, B and C are near a small stream. Altogether, the Kent Board has four bases for jurisdiction over those parts of the project within the Town of Kent: site plan review over only those elements of the proposed development in Kent plus local erosion control, wetlands and sign permits for specific areas or components. These jurisdictions would give the Kent Board authority to impose conditions, if necessary, to avoid or mitigate potential impacts associated with those project components within Kent.

In resolving a lead agency dispute, I am guided by the three criteria listed in order of importance in paragraph 6 NYCRR Part 617.6(b)(5)(v). These are:

(1) whether the anticipated impacts of the action being considered are primarily of statewide, regional or local significance (i.e., if such impacts are of primarily local significance, all other considerations being equal, the local agency involved will be lead agency);

(2) which agency has the broadest governmental powers for investigation of the impacts of the proposed action; and

(3) which agency has the greatest capability for providing the most thorough environmental assessment of the proposed action.

The first criterion relates to whether the anticipated impacts are primarily of statewide, regional or local significance. At present, the majority of the onsite physical construction is proposed to occur within the Town of Patterson, the existing residences actually adjoining the site are within the Town of Patterson, and the secondary access is proposed to be provided via streets within the Town of Patterson; thus, many impacts of construction and operation will be borne by the Town of Patterson or its residents. However, construction of the primary access road as proposed plus any offsite construction necessary to upgrade Route 311 or other portions of the existing road network, and subsequent use of those roads, will impact lands and residents of the Town of Kent. Since the impacts are primarily local in nature and both municipalities will likely be impacted, I must proceed to the next criterion in order to resolve this dispute.

The next criterion addresses the breadth of jurisdiction. Consideration of this criterion reveals a clear distinction between the disputing agencies. The Town of Patterson must issue a site development plan approval in order for the project to be constructed. Since the majority of the project site and proposed components are located in the Town of Patterson, this review will address most of the major concerns including the siting and construction of all of the proposed structures, nearly all of the proposed parking, and the internal roadways. Under its site development plan approval, the Town of Patterson Planning Board will have the authority to impose substantive conditions on the size and location of structures, parking, internal roads, and associated drainage management facilities to avoid or minimize the impacts that are identified during the environmental review.

In contrast, the Town of Kent's jurisdiction is limited to those project elements actually located within Kent: construction of the access road and, potentially, upgrading of the road network needed to accommodate the increase in traffic resulting from the project. The ability of the Town of Kent to impose substantive conditions and mitigation would also be limited to those components within the Town of Kent. Therefore, I find that the jurisdiction of the Patterson Board provides broader authority to review and provide mitigation for the anticipated impacts from this proposal.

The third criterion relates to the capacity of an agency to provide for a thorough environmental assessment. Both parties to this dispute possess the necessary staff or the ability to obtain the assistance of consultants to undertake an adequate environmental review for the proposed action. Given that weighing the second criterion has indicated a clear preference for the Patterson Board, however, consideration of the third criterion is not necessary for me to reach a decision.

I conclude, based on the facts presented, that the Town of Patterson Planning Board should be lead agency for the conduct of the environmental review for the proposed Patterson Crossing Retail Center due to the local nature of the impacts and the broad scope of authority afforded to the Patterson Board under its site development plan review and erosion control permit processes. I note, however, that the environmental review of the proposed project must address all potential impacts, including those which may primarily affect lands and residents of the Town of Kent.

This decision in no way limits the jurisdiction or responsibility of the Kent Board. I urge the Town of Kent to actively contribute to the environmental review which the Patterson Board will direct. Further, I remind the Patterson Board that the environmental record which it will develop needs to address potential impacts identified by the Kent Board so that the common environmental record will satisfy both the Patterson Board and the Kent Board's needs for an environmental record on which to base approvals needed for all project components.